Our Legal Heritage Part 1

Our Legal Heritage.

by S. A. Reilly.

Preface

This book was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. Its purpose is also to see the historical context in which our legal doctrines developed. It includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the Magna Carta provisions in their historical context; and the emergence of attorneys.

This book is a primer. One may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. It can serve as an introduction on which to base further reading in English legal history. It defines terms unique to English legal history. However, the meaning of some terms in King Aethelbert's code in Chapter 1 are unknown or inexact.

In the Table of Contents, the t.i.tle of each chapter denotes an important legal development in the given time period for that chapter.

Each chapter is divided into three sections: The Times, The Law, and Judicial Procedure.

The Times section sets a background and context in which to better understand the law of that period. The usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. Standard practices are described, but there are often variations with locality. Also, change did not come abruptly, but with vacillations, e.g. the change from pagan to Christian belief and the change to allowance of loans for interest. The scientific revolution was accepted only slowly. There were often many attempts made for change before it actually occurred, e.g.

gaining Parliamentary power over the king's privileges, such as taxation.

The Law section describes the law governing the behavior and conduct of the populace. It includes law of that time which is the same, similar, or a building block to the law of today. In earlier times this is both statutory law and the common law of the courts. The Magna Carta, which is quoted in Chapter 7, is the first statute of England and is listed first in the "Statutes of the Realm" and the "Statutes at Large". The law sections of Chapters 7 - 18 mainly quote or paraphrase almost all of these statutes. Excluded are statutes which do not help us understand the development of our law, such as statutes governing Wales after its conquest and statutes on succession rights to the throne.

The Judicial Procedure section describes the process of applying the law and trying cases, and jurisdictions. It also contains some examples of cases.

For easy comparison, amounts of money expressed in pounds or marks [Danish denomination] have often been converted to the smaller denominations of s.h.i.+llings and pence. There are twenty s.h.i.+llings in a pound. A mark in silver is two-thirds of a pound. s.h.i.+llings are abbreviated: "s." There are twelve pennies or pence in a Norman s.h.i.+lling. Pence are abbreviated "d." Six s.h.i.+llings and two pence is denoted 6s.2d. A scaett was a coin of silver and copper of lesser denomination than a s.h.i.+lling. There were no coins of the denomination of s.h.i.+lling during Anglo-Saxon times.

The sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. There is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. Instead, a word search may be done on the electronic text.

Dedication and Acknowledgements

A Va.s.sar College faculty member once dedicated her book to her students, but for whom it would have been written much earlier. This book "Our Legal Heritage" is dedicated to the faculty of Va.s.sar College, without whom it would never have been written. Much appreciation goes to Professor James Curtin of Loyola Law School for his review and comments on this book's medieval period: Chapters 4-10, and especially his comment that "I learned quite a bit about life in those days from your work." Thanks go to Loyola University Law School Professor George Anastaplo for introducing me to Professor Curtin. Much appreciation goes to Professor Lacey Baldwin Smith of Northwestern University's History Department for his review and comments on this book's Tudor and Stuart periods: Chapters 11-17, especially his comment that he learned a lot.

Thanks go to Northwestern University Law School Professor Steven Presser for introducing me to Professor Smith. Finally, many thanks go to fellow Mensan William Wedgeworth for proof-reading the entire book.

Chapter 1 - - -

- The Times: before 600 A.D. -

The settlement of England goes back thousands of years. At first, people hunted and gathered their food. They wore animal skins over their bodies for warmth and around their feet for protection when walking.

These skins were sewn together with bone needles and threads made from animal sinews. They carried small items by hooking them onto their belts. They used bone and stone tools, e.g. for preparing skins. Their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. They wore conical hats of bound rush and lived in rush shelters.

Early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. They were probably dug with antler picks and wood spades. The people lived in rectangular huts with four wood posts supporting a roof. The walls were made of saplings, and a mixture of mud and straw. Cooking was in a clay oven inside or over an open fire on the outside. Water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement.

Forests abounded with wolves, bears, deer, wild boars, and wild cattle.

They could more easily be seen from the hill tops. Pathways extended through this camp of huts and for many miles beyond.

For wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. They carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. The first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. A wife wore a gold wedding band on the ring finger of her left hand to show that she was married.

Women usually stayed at home caring for children, preparing meals, and making baskets. They also made wool felt and spun and wove wool into a coa.r.s.e cloth. Flax was grown and woven into a coa.r.s.e linen cloth.

Spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. The weaving was done on an upright or warp-weighted loom.

People of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and sh.e.l.l, which were glued on with glue that was obtained from melting animal hooves. People drank from hollowed- out animal horns, which they could carry from belts. They could tie things with rawhide strips or rope braids they made. Kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. Men and women wore pendants and necklaces of colorful stones, sh.e.l.ls, amber beads, bones, and deer teeth. They skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. The speared fish with barbed bone p.r.o.ngs or wrapped bait around a flint, bone, or sh.e.l.l fish hook. On the coast, they made bone harpoons for deep-sea fish. The flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow.

The king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. Some men brought their hunting dogs on leashes to follow scent trails to the animal. The men threw stones and spears with flint points at the animals. They used wood clubs to beat them, at the same time using wood s.h.i.+elds to protect their bodies. They watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. This began the concept of a month. Circles of stone like Stonehenge were built with alignments to paths of the moon.

If hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. After the battle, the clan would bring back its dead and wounded. A priest officiated over a funeral for a dead man. His wife would often also go on the funeral pyre with him.

The priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. Sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce.